When in India...

Karan Thapar

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Updated: Mar 16, 2013 22:48 IST

How effectively has the Indian system handled the Italian marines issue? As the controversy dominates the news, its worth trying to answer this question.

Let's start with the government's handling. Given that from the very outset Italy did not accept the jurisdiction of the Indian courts and, second, that India's claim the incident happened within Indian territorial waters was patently incorrect, should the government have agreed to take the matter to an international tribunal or even arbitration rather than force the Italians to accept a verdict under Indian law?

The answer hinges critically on whether India has jurisdiction in this matter. Even the Supreme Court judgement of January 18th, which ruled that India did have jurisdiction, actually allowed, or even encouraged, the Italians to again raise this question at the Special Court that it ordered the government to establish. It said: "It will be open to the petitioners to re-agitate the question of jurisdiction before the trial court which will be at liberty to reconsider the matter … it is also made clear that nothing in this judgement should come in the way of such reconsideration."

Now, in the light of this, did the government make matters worse by failing to set up the Special Court? Two months have passed and it still doesn't exist.

Worse, still, is another consequence of this delay. After the Supreme Court quashed the case in the Kerala High Court on January 18 the marines no longer face charges framed by a court of law. No doubt the FIR still exists but that's all. Perhaps they see that as good reason not to return. Looking back, would the government have done better to accept the initial Italian offer of joint investigation leading, presumably, to joint handling? I'm not sure the answer isn't yes.

Let's now come to the Supreme Court's handling of this matter. Was it indulgent in permitting the marines to go home a second time in February, just six weeks after their Christmas visit? Or was this a reflection of the fact the Court had doubts about the merits of the Indian case? Presumably, it's one or the other. If you bear in mind the Court also kept open the critical question of jurisdiction you could conclude it had doubts. Second, did the Central government oppose the Italian petition for the marines to return home to vote? The Kerala government did but the Supreme Court ruled it had no locus-standi. The Central government, however, remained silent. It neither opposed nor supported. Why? Did it also have doubts about the merits of the case?

Finally, there's the question of the Ambassador's diplomatic immunity. No doubt, under Article 32 (3) of the Vienna Convention, when he petitioned the Supreme Court he automatically accepted its jurisdiction and waived his immunity. But Article 32 (4) makes it clear that waiver was limited. A second waiver is needed before any judgement or order of the Court can be executed. And that waiver has to come from the Italian side.

In its absence the Supreme Court's order not to leave the country cannot be enforced by the government without breaching the Vienna Convention.

This means the Supreme Court could have created a piquant problem for the government. For if the Ambassador chooses to leave India this evening what will the government do? Stop him and breach the Vienna Convention? Or permit him and offend the Supreme Court?

Arguably, the Supreme Court has only further complicated an already difficult problem.